Missing the Marque: The Usefulness of a Forgotten Constitutional Clause

The issuing of letters of marque and reprisal would be a constitutional method of bringing to justice those suspected of killing Americans or threatening their lives.

A group of Americans associated with a larger, global terrorist network have set up training camps in remote areas of California and Washington. Reliable intelligence indicates that they are planning to carry out another deadly assault on targets in Muslim countries. Should they be successful, the attacks would undoubtedly result in the deaths of Muslim civilians.

Rather than wait for these marauders to murder their countrymen, the government of one of the intended targets sends special forces units to conduct a night raid on the hideouts of the suspected terrorists.

One Saturday, under the cover of darkness, two separate commando teams land in the United States, one in California and one in Washington.

Although the special operations team targeting Washington left without killing or capturing the alleged American terrorists, the unit sent to California seized the American they were sent to retrieve and headed back to the Middle East to try him on charges of committing brutal atrocities against citizens of that nation.

Of course, readers realize that the events depicted above are fictitious.

They also recognize that by simply changing the locations of the terrorists' camps from California and Washington to Libya and Somalia (respectively) and changing the country deploying special forces troops from an unnamed Middle Eastern nation to the United States, this account describes exactly what happened last Saturday.

President Obama’s decision to send military forces — albeit small, highly trained special operations units — into the sovereign territory of a country with whom the United States is not at war is itself an act of war.

In fact, the action violates hundreds of years of settled international laws regarding the respect due to the sanctity of national borders.

Admittedly, sending troops into a nation to kill or capture alleged al-Qaeda operatives is morally preferable to lighting up whole villages with Hellfire missiles launched from Predator drones.

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